Citation Nr: 18144853 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 13-00 552 DATE: October 25, 2018 REMANDED Entitlement to service connection for diabetes, to include as due to herbicide exposure is remanded. Entitlement to service connection for a lung disability, to include as due to herbicide and asbestos exposure is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Navy from September 1971 to October 1974. In September 2013 the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing; a transcript of that hearing is of record. In February 2015, the Board of Veterans’ Appeal (Board) denied the instant claims. The Veteran appealed. In a July 2015 order, the Court of Appeals for Veterans’ Claims (Court) upheld a joint motion of the parties (JMR) and remanded the case back to the Board for action consistent with the joint motion. Entitlement to service connection for diabetes and a lung disability are remanded. In order to comply with the July 2015 Court order, the Board in June 2016 remanded the appeal to take additional steps to verify the Veteran’s claims that he took helicopter flights from the U.S.S. Oriskany to Da Nang airbase in 1973 as part of his duties as a plane captain on a F-8 crusader fighter jet. In this regard, the agency of original jurisdiction (AOJ) in compliance with the Board’s remand instructions obtained from the Veteran a statement as to the dates of his flights into the Republic of Vietnam (i.e., from January 1973 to March 1973) (see September 2016 statement), obtained the appellant’s service personnel records (see reply from National Personnel Records Center (NPRC) dated in August 2009), and obtained from the Joint Services Records Research Center (JSRRC) the January 1973 to March 1973 command history and deck logs of the U.S.S. Oriskany (see May 2018 JSRRC reply). Tellingly, nothings in these records documented the Veteran’s claims regarding having traveled to the Republic of Vietnam in 1973. However, in June 2018 the Veteran’s representative notified the AOJ that its development was inadequate. Specifically, the Veteran’s representative notified the AOJ that it failed to request records from the appellant’s specific unit, flight squadron 191, which may show he went ashore as part of his regular duties a plane captain on a F-8 crusader fighter jet. While the Veteran’s representative in June 2018 also notified the AOJ that the flight squadron 191 records from 1973, like the already obtained deck logs of the U.S.S. Oriskany from 1973, are not likely to show who went ashore for maintenance purposes, the Board nonetheless finds that it has a duty to request and review these records before it can again adjudicate the appeal. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled.). Simply stated, the Veteran’s representative did not waive VA’s duty to obtain these record, or to attempt to obtain these records, so the Board must make this attempt. Therefore, the Board finds that a remand to undertake this action is required. Id. The matters are REMANDED for the following action: Obtain and associate with the record all record for “flight squadron 191” dated from January 1973 to March 1973. (Continued on the next page)   Because these are Federal records, efforts to obtain them should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain them would be futile. If the records cannot be located or no such records exist, a Memorandum of Unavailability documenting all of VA’s actions to obtain the records should be prepared and associated with the claims file and the Veteran and his representative should be notified in writing that the records cannot be found. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel